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The Obama administration’s seizure of phone records of Associated Press is clearly a message, first of all, to whistleblowers. If we can go after AP, we can go after anybody. And whoever you might phone, we can get hold of those records. And, of course, if they can go after AP, they can go after any journalist, so it’s also a message to journalists across the country.

Now joining us to talk about all of this is Kathleen McClellan. She’s a national security and human rights counsel at the Government Accountability Project, a leading whistleblower rights organization in D.C.

Thanks for joining us, Kathleen.

KATHLEEN MCCLELLAN, GOVERNMENT ACCOUNTABILITY PROJECT: Thanks for having me.

JAY: So, first of all, how do you think this will affect whistleblowers? You as an organization and you as counsel have represented some whistleblowers. Perhaps you can tell us a bit about that. And what does this do to the next person thinking about picking up the phone and calling the press?

MCCLELLAN: Well, the Obama administration’s unprecedented attack on whistleblowers and on the media by using the Espionage Act to indict people for alleged leaking of classified information, which is almost always actually whistleblowing, has already had a tremendous chilling effect on both whistleblowers and on the media. National security whistleblowers have next to no legal protections as it is. And now not only do they have to worry about all of the normal retaliation and the career suicide that whistleblowing can be for national security employees; they have to worry about being criminally prosecuted for disclosing waste, fraud, abuse, and government illegalities. And the journalists now have to worry about the same sort of accusations.

JAY: So I guess the argument you would get from the Obama administration would be we have a right to defend national security, we have a right to national secrets, and there is a process internally to do all of these things if you want to complain. So what’s wrong with that argument?

MCCLELLAN: Well, in the case of Thomas Drake, the National Security Agency whistleblower who is a client of ours at GAP, he went through all of those proper internal channels. He went to the Department of Defense inspector general. He went to the Senate and House intelligence committees. And that did not protect him. And, in fact, it made him a target. And he and the other people at the National Security Agency, his fellow whistleblowers who complained about waste, massive, billion-dollar boondoggle type waste at the National Security Agency and unconstitutional domestic spying, they were all targeted with a federal criminal investigation.

And it turned out that despite the government’s claims that Mr. Drake had put lives at risk and endangered soldiers on the field, despite those claims that the government made in his case, none of the information that he was accused of improperly retaining was actually properly classified. So while the government will consistently assert that it’s national security at play, oftentimes it’s the fact that the government wants to hide embarrassing or illegal conduct.

JAY: And what about when they’re national security issues? I mean, if you take something like the Bradley Manning leak, that he leaked to WikiLeaks, they’re certainly arguing that those are national security issues, and they’re saying the revelations jeopardize security in some way—I’m not sure they’ve actually given any proof or evidence how it did, but one supposes they could try to make that argument. Do you think there should be some kind of limits on when someone can leak and what the press should do with it?

MCCLELLAN: Well, absolutely there’s properly classified information. And the regulations and the statutes that govern classified information define it pretty well. The problem is everybody in government is incentivized to classify, but they’re not incentivized to declassify or to not classify. And so there’s rampant overclassification plaguing the system.

Of course there are things that should be secret. The problem is the temptation to classify things that are embarrassing or that cover up misconduct is too great, and the consequences for overclassifying are nothing. There are no consequences, really, for overclassifying, despite the fact that government regulations require consequences for overclassifying, just like they require consequences for failing to classify or disclosing classified information.

JAY: I should add to the Bradley Manning comment I made that I think it is as many as 3 million people had access to the same information Bradley Manning had access to. So if you really want any of that to be secret, you don’t put it on a network that 3 million people can get at.

MCCLELLAN: It’s true. And is it a secret if you can share it with a million people?

JAY: So let’s go back to the AP case. Apparently, the Department of Justice actually violated their own guidelines on the AP. They didn’t—they are—supposedly need to negotiate with a news agency before they take measures like seizing things, they’re supposed to notify the news agency that they’re doing it, and they didn’t. Why do you think in this case they were—actually went beyond their own guidelines?

MCCLELLAN: Well, I think that if the Justice Department had gone to the AP and negotiated like they were supposed to—the AP held the story in question, so it’s not as though the AP wasn’t willing to talk, it seems. But I think as far as notifying the AP that they were going to subpoena such a broad range of records, 20 phone lines, I think the president, the CEO of AP has said over 100 journalists use those lines. The AP would have had an opportunity to go to court to fight to quash that subpoena. With such a broad record—broad range of records being requested, I would think that—I would suspect that the AP might have done—have chosen to go to court to quash that subpoena. But by going around the regulation, the Justice Department denied AP that opportunity, and the records were turned over already.

Why the Justice Department decided to ignore their regulation I think remains to be seen.

JAY: Yeah. I mean, it seems—I mean, you can’t go after AP without sitting and having a conversation in a room, saying, you know, if we’re going after AP, it’s, like, one of the leading news organizations in the country, it’s going to be news everywhere, eventually this has to come out, although AP found out about it, what, two months later. You know, you don’t do this unconsciously, go after such a news organization with such a high profile. So they wanted to send this message that they would go after this and in this way, no?

MCCLELLAN: I think it definitely does send a message. I mean, whether or not they wanted to send a message or not is—you know, the administration seems to say when it’s convenient that it’s not a policy of a crackdown on leakers or on whistleblowers. It’s just individual cases. But then when they want to send a message and they want to keep people quiet, they tout these prosecutions, and when they want to sound tough on national security, they tout it. And with Espionage Act prosecutions, whistleblowing was effectively criminalized. And now with the AP and with the latest development in the Stephen Kim case, another Espionage Act case, where the government actually accused a reporter of violating the Espionage Act simply because he was reporting the news, the news gathering process is being criminalized.

JAY: Yeah, explain more about the details of that.

MCCLELLAN: Well, the Stephen Kim case—Stephen Kim is another individual who’s been accused of violating the Espionage Act. And in that case, the Justice Department sought a warrant based upon what they call probable cause that the reporter who—that Kim had been alleged to have contact with was violating the Espionage Act because he was somehow soliciting or encouraging the disclosure of classified information.

That’s essentially what all national security reporters do every day. That’s the news gathering process. They ask sources for information. And with so much information classified, I think last—in the fiscal year 2011 alone, the government made some over 90 million decisions to classify something. With so much information classified, that’s a lot of risk to journalists.

And classified information, not only do journalists request it every day, but it appears in the paper every day, and the government is the biggest leaker of all in disclosing that classified information. So when you have the Justice Department going to a court and saying there’s probable cause to believe that a reporter is committing espionage by reporting allegedly classified information, that essentially is going to criminalize the news gathering process.

And so now, you know, with whistleblowers being prosecuted, whistleblowing is being criminalized, and now the news gathering process is being criminalized. And the chilling effect has already been felt. And with each new development, it just seems to get more and more severe retaliation and more and more severe consequences for reporting the news.

JAY: Now, some people have been making criticism of sorts that a lot of the sort of liberal NGOs, organizations, liberals in the news media have been kind of soft on Obama up until this point, in the sense that the NDAA, for example, that was passed that allows the military to indefinitely intern people that are accused of somehow aiding or having something to do with the Taliban or al-Qaeda essentially waiving any rights to trial and other types of measures that have been passed under the Obama administration have not received as much attention as many people think they would have if it had been a Bush administration, for example. Now people are raising their voices more ’cause it’s AP and they’re directly going after news media. But do you think there’s some—it’s fair, that critique, that a lot of voices have been quiet up until now about what President Obama’s been doing?

MCCLELLAN: There have been quiet voices. And I think, you know, some former Bush administration officials were quoted as saying, well, we’d never be able to get away with this.

That said, there have been a lot of voices speaking out, including Chris Hedges and Daniel Ellsberg, and now a lawsuit challenging the constitutionality of the NDAA’s indefinite detention provision, including lots of whistleblowers, including a lot of nonprofits. And while some media organizations have taken a while to wake up to the fact that the media is really being targeted here, I think that’s happening now, and that’s only a good thing. And I think the media’s only going to become more and more concerned as their sources dry up because people are scared of talking as a result of these prosecutions and as they themselves become targets of criminal investigations.

Paul Jay is CEO and senior editor of The Real News Network (TRNN). As senior editor of TRNN, Paul has overseen the production of more than 4,500 news stories and is the host of TRNN’s news analysis programming. As executive producer of CBC Newsworld’s independent flagship debate show ‘counterSpin’ he produced more than 2,000 shows during its 10 years on the air. He is an award-winning documentary filmmaker with more than 20 films under his belt and was founding chair of Hot Docs!, the Canadian International Documentary Film Festival (now the largest in North America).

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